KEEP OUR DOLLARS IN INDEPENDENCE COUNTY AND CAROL CROSBY APPELLANTS/CROSS-APPELLEES
TRACEY MITCHELL, IN HER OFFICIAL CAPACITY AS THE INDEPENDENCE COUNTY CLERK APPELLEESTATE OF ARKANSAS INTERVENOR/APPELLEECANDY ALLISON KONKLER INTERVENOR/APPELLEE/CROSS-APPELLANT
FROM THE INDEPENDENCE COUNTY CIRCUIT COURT [NO. CV-2016-182]
HONORABLE TIMOTHY WEAVER, JUDGE
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.,
by: Clayborne S. Stone and John Keeling Baker; and Murphy,
Thompson, Arnold, Skinner & Castleberry, by: Kenneth P.
"Casey" Castleberry, for appellants.
Law Firm, by: C. Eric Hance; and Blair & Stroud, by:
Barrett S. Moore, for appellees Tracey Mitchell and Candy
Rutledge, Att'y Gen., by: Colin R. Jorgensen, Ass't
Att'y Gen., for appellee State of Arkansas.
COURTNEY HUDSON GOODSON, Associate Justice
Keep Our Dollars in Independence County ("KODIC")
and Carol Crosby appeal from the Independence County Circuit
Court's order affirming the Independence County
Clerk's determination that KODIC's local-option
petition was insufficient to be placed on the ballot. For
reversal, appellants argue (1) that the circuit court had
subject-matter jurisdiction of their appeal from the
clerk's certification of insufficiency and (2) that the
circuit court erred in finding Arkansas Code Annotated
section 3-8-811(b)(6) (Supp. 2015) constitutional under
Article 5, section 1 of the Arkansas Constitution.
Candy Allison Konkler, who intervened in the case, also filed
a cross-appeal in which she contends that KODIC's
petition was fatally deficient because (1) some of the
petition pages contained two notarizations and two canvasser
signatures in violation of Arkansas Code Annotated section
3-8-811(b); (2) the petition form was not file marked; (3) a
new petition format was submitted in the midst of the
petition drive in violation of Arkansas Code Annotated
section 3-8-806(d)(2) (Supp. 2015); and (4) the petition did
not contain an attorney's certification as required by
Arkansas Code Annotated section 14-14-915(a)(3) (Repl. 2013).
Our jurisdiction is pursuant to Arkansas Supreme Court Rule
1-2(a)(4) (2016). We dismiss both the direct appeal and the
cross-appeal as moot.
a local-option ballot question committee as defined in
Arkansas Code Annotated section 3-8-702(7)(A) (Supp. 2015),
sponsored a petition to allow Independence County voters to
decide whether to permit the manufacture and sale of
alcoholic beverages in the county. This "wet/dry"
election was to be held during the general election on
November 8, 2016. Pursuant to Arkansas Code Annotated section
3-8-803 (Supp. 2015), in order for a local-option question to
appear on a county-wide ballot, the sponsor must file a
petition containing the signatures of at least 38 percent of
the registered voters of that county. It is undisputed by the
parties that the petition in this case was required to have
the signatures of at least 7, 966 registered Independence
the signature-gathering process, KODIC filed its petition
with appellee Tracey Mitchell, the Independence County Clerk,
on July 22, 2016. On July 30, 2016, Mitchell issued a letter
to KODIC in which she indicated that only 7, 252 of the 13,
008 signatures submitted had been verified and that the
petition was insufficient. The letter explained that
"[o]therwise valid signatures listed on petition sheets
containing signatures from individuals residing outside of
this county were rejected" as being in violation of
Arkansas Code Annotated § 3-8-811(b)(6). This section
states that a county clerk must not count any signatures on a
petition part if the petition part "clearly and
unmistakably contains signatures of petitioners from more
than one (1) county unless each signature of a petitioner
from another county is clearly stricken before the filing of
the petition with the county clerk." Ark. Code Ann.
August 9, 2016, KODIC filed additional signatures to be added
to the local-option petition pursuant to Arkansas Code
Annotated section 14-14-915(e), which allows a ten-day cure
period. KODIC also submitted proof demonstrating that certain
signatures previously rejected by Mitchell were correct and
should have been counted. Following her verification of the
additional signatures, Mitchell issued a letter to KODIC on
August 13, 2016, indicating that the petition fell short of
the 38-percent threshold by 377 signatures. Mitchell stated
in the letter that 424 otherwise valid signatures had not
been counted because those signatures appeared on petition
parts also containing the signature of someone outside
Independence County in violation of section 3-8-811(b)(6).
filed a petition to appeal Mitchell's certification of
insufficiency with the circuit court on August 15, 2016.
KODIC also requested that the circuit court declare section
3-8-811(b)(6) unconstitutional. Carol Crosby, a resident,
taxpayer, and registered voter in Independence County whose
valid signature was rejected under the statute, joined KODIC
in the appeal. The Attorney General intervened to defend the
statute's constitutionality, and Konkler, a resident and
taxpayer of Independence County who opposed the local-option
petition, was also granted intervention.
a hearing on August 23, 2016, the circuit court entered an
order finding that section 3-8-811(b)(6) was constitutional.
Evidence was also presented at the hearing regarding
Mitchell's findings of insufficiency, and the parties
were instructed to file posttrial briefs on the issue. In her
posttrial brief, Konkler argued for the first time that the
circuit court did not have subject-matter jurisdiction of the
appeal because KODIC had not filed its appeal petition within
the ten-day period set forth in Arkansas Code Annotated
section 3-8-205(b) (Supp. 2015). Konkler contended that this
section applied to the local-option petition in this case
rather than Arkansas Code Annotated section 14-14-915 as
argued by KODIC.
final order entered on September 7, 2016, the circuit court
questioned whether it had jurisdiction but went on to address
the sufficiency of the petition. Although KODIC demonstrated
that three additional signatures should have been counted by
Mitchell, the circuit court agreed that 424 signatures had
been properly excluded pursuant to section 3-8-811(b)(6) and
that the petition did not contain the required number of
signatures. The court rejected Konkler's arguments that
the petition contained additional defects because certain
petition parts bore two separate canvasser affidavits and
notarizations and the petition was not file-marked by the
clerk. In addition, the court disagreed with Konkler that
KODIC had essentially restarted its signature-collection
efforts by adding a second notary page to its petition form
or that the petition was deficient because it lacked an
attorney's certification. The circuit court affirmed
Mitchell's certification of insufficiency and denied
appellant's appeal petition. Appellants filed a timely
notice of appeal from the circuit court's order, and
Konkler filed a notice of cross-appeal.
appellants recognize in their first point on appeal, a
preliminary issue that must be resolved is whether the
circuit court had subject-matter jurisdiction to hear the
appeal of Mitchell's certification of insufficiency.
Although the circuit court did not dismiss the appeal
petition on this basis, the issue of subject-matter
jurisdiction is one that we are required to raise on our own.
This is because when the circuit court lacks jurisdiction,
this court also lacks jurisdiction on appeal. Tripcony v.
Ark. Sch. for the Deaf, 2012 Ark. 188, 403 S.W.3d 559.